Done That

Imitation may be the sincerest form of flattery. Or it may be a quick route to a lawsuit."Fixation," a spot for Sega of America's NBA 2K2 videogame that broke in January, is a scene-by-scene parallel of Nike's "Frozen Moment," from 1996, which featured Michael Jordan. The Sega spot, from Leagas Delaney in San Francisco, shows fast-paced basketball action shifting to slow motion as riveted onlookers neglect what's going on around them, then returns to normal speed and closes with a slam dunk. And so does the Nike spot, from Wieden + Kennedy in Portland, Ore.Nike ads have been parodied several times—most recently in a Bur ger King spot by D'Arcy Masius Benton & Bowles, New York, which has echoes of "Freestyle"—so why did the Beaverton, Ore.-based company choose to make a case out of Sega's spot? Says Nike special counsel Rick Kurnit: Sega's spot was "not commenting, not criticizing—[it was] simply reproducing." Nike charged Sega with copyright infringement and unfair competition.Responds Sega general counsel Leon ard Flootmaker: "From a fair-use perspective ... Nike did not have a slam-dunk case." But Sega settled the suit earlier this month—according to Floot maker, the settlement was not an admission of wrongdoing but an effort to avoid a long legal battle. Sega apologized, shelved the spot and donated $50,000 each to two Boys & Girls Clubs in Nike's name. To Nike advertising director Rob DeFlorio, it was a clear-cut case of infringement. "A lot of our stuff gets copied or referenced, but [the Sega] ad was particularly literal and particularly egregious," he says. "Exact scenes were copied."For example, "Frozen Moment" shows runners on a treadmill and a dog shaking out its wet fur; "Fixation" has a hamster on an exercise wheel and a person shaking out his wet hair.Flootmaker, meanwhile, contends that Sega was not trying to evoke Nike or imply that the company endorsed Sega's game. "To the best of my knowledge, there was no intent like, 'Let's rip off Nike,' or not even, 'Let's pay homage to Nike,' " he says. For Nike, one determining factor in pursuing a suit was that the Sega ad doesn't put its own spin or twist on Nike's original concept. Parody must "comment on or criticize the underlying work—what doesn't work is to simply do an homage—replicating someone's copyrighted work," says Kurnit, a partner at law firm Frankfurt Garbus Kurnit Klein & Selz in New York. While legal wrangling is unusual, parody is a favorite comic device for many marketers. In recent years, Coke's "Hilltop" ad, Gap's singing teens and MasterCard's "Priceless" have been the object of ad send-ups. The format of McCann-Erickson's "Priceless" campaign has been mimicked in spots for Ralph Nader, Austin Powers: The Spy Who Shagged Me, Mercedes-Benz and the Office of National Drug Control Policy. Deputy creative director Joyce King Thomas believes consumers are savvy enough to realize MasterCard is not sponsoring the parodies. But if a parody were also to conclude with the word "priceless," King Thomas notes, "we will challenge it."For Mountain Dew, BBDO New York has parodied everything from Queen's "Bohemian Rhapsody" video to the Lutheran Church's Davey and Goliath show. But executive creative director Bill Bruce won't touch other commercials. "That's sacred territory," he says. "We're trying to feed off our own brand, not someone else's." Leagas' relationship with Sega was not harmed by the legal battle, and last week the shop won Sega's consolidated $25 million account.But some in the industry are baffled by why the agency would reference a 6-year-old spot that the general public is unlikely to remember. One creative terms the Sega spot an "ill-conceived ripoff."DeFlorio sees an alarming trend. "If you create a lot of sameness in the industry, it dilutes everything," he says. "Give consumers a break. They like to see originality. We've got to stop the laziness." —with Mallorre Dill and Sarah J. Heim

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Done That

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